HomeMy WebLinkAboutContract 48830�
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,� �������„, oR COMPLETION AGREEMENT
This Completion Agreement ("Agreement) is made and entered into by
and among the City of Fort Worth ("City"), and Bloomfield Homes, L.P., a
Texas lmited partnership("Developer"), N/A("Lender"), effective as of March
- 21, 2016. The City, the Developer and the Lender are hereinafter collectively
called the "Parties".
WITNESSETH:
WHEREAS, the Developer owns that certain tract of real property that
contains approximately 16.952 acres that is located in the City, the legal
description of which tract of real property is marked Exhibit "A" — Legal
Description, attached hereto and incorporated herein for all purposes (which
tract of real property is hereinafter called the "Property"); and
WHEREAS, the Developer intends to develop the Property as an
addition to the City through plat FP 15-071 or FSXXXXX; and
WHEREAS, the Developer and the City have entered into a Community
Facilities Agreement relating to the development of Rosemary Ridge
Addition, Phase 2(hereinafter called the "CFA"); and
WHEREAS, the City has i•equired certain assurances of the availability
of funds to complete the streets, street signs and lights, and the water and
sewer utilities for the development of the Property (herein collectively called
the "Community Facilities"), and
WHEREAS, in order to provide such assurances as have been required
by the City, the Lender has agreed to advance certain funds to the City for
Hard Costs (which term is hereinafter defined) subject to, and in accordance
with, the terms, provisions and conditions of this Agreement; and
WHEREAS, the Developer has granted to the Lender as additional
security for the Loan (which term is hereinafter defined) a security interest in
all plans and specifications for the development of the Property (hereinafter
collectively called the "Plans"); and
WHEREAS, the Parties desire to set forth the terms and conditions of
such accommodations as are described above.
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��'FICIA�. �ECORD
�ITY �;�CR�TAftY_.
f�3". !�l4R�'H� T,?�
NOW THEREFORE, for and in consideration of the benefits to be
derived from the mutual observance by the parties of the terms and conditions
hereof, and for and in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, the Parties agree as follows:
1. Recitals. The foregoing recitals are true, correct and complete
and constitute the basis for this Agreement and they are incorporated into this
Agreement for all purposes.
2. The Completion Amount. The City and the Developer agree that
the Hard Costs required to complete the Community Facilities in ihe
aggregate should not exceed the sum of One Million Seventy Nine Thousand
Nine Hundred Thirty Seven Dollar and 70/100 Dollars ($1079937.70),
hereinafter called the "Completion Amount". Notwithstanding the foregoing,
it is acknowledged that the actual costs of completion of the Community
Facilities may vary as a result of change orders agreed to by the Parties, but
such variances for the purposes of this Agreement shall not affect the
Completion Amount as used herein.
3. Adiustments to the Completion Amount. The Lender may from
time to time make advances to the Developer for the development of the
Property under the development loan that has been made by the Lender to the
Developer for the purpose of financing the costs of constructing the
Community Facilities for the Property (the "Loan") subject to, and in
accordance with, the terms, conditions and provisions of the Loan Documents
(which term is hereinafter defined) evidencing and securing the Loan. Some
of those advances shall be for Hard Costs as specified in the "Approved
Budget" relating to the Loan, a copy of which Approved Budget is marked
Exhibit "B", attached hereto and incorporated herein for all purposes, with
the Hard Costs (which term is hereinafter defined) line items highlighted.
The term "Hard Costs" shall mean the actual costs of construction and
installation of the Community Facilities. To the extent that advances under
the Loan are for the payment of Hard Costs, the Completion Amount shall be
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deemed reduced, dollar for dollar. The Lender may withhold statutory
retainage from any advances under the Loan or pursuant to this Agreement.
All such retainage withheld, to the extent it is attributable to Hard Costs,
shall also reduce the Completion Amount dollar for dollar. All retainage
withheld by the Lender for Hard Costs that are advanced to the City pursuant
to this Agreement shall be released to the City as provided in the Texas
Property Code upon expiration of the statutory retainage period.
4. Completion bv the Developer. The Developer agrees to
complete the Community Facilities on or before the date for completion that
is established in the Loan Documents plus thirty (30) days (hereinafter called
the "Completion Date"), in accordance with the CFA, the Plans that are
approved by the Lender and the City and all documents evidencing or
securing the Loan (which documents are hereinafter collectively called the
"Loan Documents"). For the purposes of this Agreement, the development of
the Property shall be deemed complete upon acceptance by the City of the
Community Facilities. The City shall promptly notify the Lender and the
Developer upon such acceptance.
5. Com�letion by the City. In the event that either: (A) the
development of the Property is not completed by the Completion Date for any
reason whatsoever, or (B) the Developer is in default under the Loan, then the
Lender, at its sole option, may request the City to complete development. The
City may, at its sole option and at the cost and expense of the Developer,
within 10 days from receipt of Lender's request, notify Lender that it will
undertake to complete the Community Facilities and the City shall then
commence, pursue, and complete the Community Facilities in a reasonably
timely, diligent and workmanlike manner in accordance with the Plans,
subject to the terms of this Agreement. The Lender and the Developer agree
that the City may use the Plans as necessary to complete the Community
Facilities.
If the City does not tiznely elect to complete the construction of the
Community Facilities or if the Lender does not request the City to complete
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construction of the Cominunity Facilities, then the Lender may at its election
terminate this Agreeinent, or at its option, proceed to complete the
Community Facilities, or foreclose on any of its collateral, or take any and
all such action as may be provided under the Loan Documents.
6. Advance of Completion Costs to the City and Delivery of Hard
Costs Collateral to the City. In the event the Lender has requested the City
and the City has elected to complete the Community Facilities, Lender shall
transfer to the City all remaining undisbursed Hard Costs specified in the
Approved Budget within 10 days of the date that the City elected to complete
and provided Lender with written notice of such election.
The Developer hereby authorizes and instructs the Lender to make the
transfer of any remaining undisbursed Hard Costs specified in the Approved
Budget to the City within 10 days of notification that the City elects to
complete the Community Facilities.
In the event the cost to complete the Community Facilities exceeds the
moneys transferred to the City, City shall notify Lender and Developer in
writing of the need of additional funds. The additional funds required to
complete the Community Facilities shall be delivered to the City within 10
business days following notification to Lender and Developer. Failure to
deliver the additional funds shall relieve the City of the obligation to
complete the Community Facilities, in which event City shall use the Hard
Costs funds in its possession to pay the contractor(s) all funds due it/them.
Any remaining undisbursed Hard Costs shall be returned to Lender within a
reasonable time.
7. Completion bv the Lender. The Lender may, at its discretion,
but shall not be obligated to, undertake to complete the Community Facilities
if there is any default under any Loan Documents in lieu of requesting the
City to complete the Community Facilities. If the Lender elects to complete
the Community Facilities, any Hard Costs it expends shall, dollar for dollar,
reduce the Completion Amount.
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8. Easements. In the event the City or the Lender undertakes the
completion of the Community Facilities, the Developer (and to the extent
necessary the Lender) grants to the City and the Lender open access to the
Property and shall execute and deliver such temporary easements over and
across the entirety of the Property for the purpose of access and use for the
completion of the construction of the Community Facilities in accordance
with this Agreement. To the extent requested by the City and the Lender,
written temporary construction easements in form acceptable to the City and
the Lender shall be executed by the Developer and filed of record. Nothing
in this paragraph shall reduce any rights of the Lender or obligations of the
Developer under the Loan Documents.
9. Lender's Ri�hts. Nothing in this Agreement shall affect any
portion of the Lender's collateral for the Loan or limit or impair the Lender's
right to foreclose the same or deal with the collateral as it elects in
accordance with the Loan Documents.
10. Satisfaction of the City Requirements. The City agrees that the
assurances and covenants contained in this Agreement satisfy all
requirements of the City with respect to payment and performance bonds or
other requirements for security in connection with the development of the
Property and the completion of the Community Facilities that are contained in
the CFA or in any other agreement relating thereto, and the City hereby
accepts the assurances and covenants contained herein in lieu thereof. To the
extent the CFA irreconcilably conflicts with this Agreement, the provisions
of this Agreement shall control.
1l. Termination. This Agreement shall terminate upon the earlier to
occur of the following: (a) acceptance by the City of the Community
Facilities; (b) mutual written agreement of all of the Parties; or (c) the
reduction of the Completion Amount to zero. However, release of the plat
shall be governed by paragraph 12 hereof and termination pursuant to (b) or
(c) of this paragraph 11 shall not require the City to release the plat.
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12. Final Plat. The Parties acknowledge and agree that the City
shall hold the final plat of the Property until the Community Facilities are
completed and accepted by the City and all Hard Costs contractors have been
paid, less retainage. Upon acceptance by the City and receipt of evidence
from the Developer showing that all Hard Costs contractors have been paid,
including but not necessarily limited to lien waivers and bills paid affidavits,
the City shall within a reasonable time file the final plat for the Property in
the Plat Records of the county where the Property is located. The purpose of
the City retaining the final plat of the Property as provided herein is to
guarantee the Developer's obligations under the CFA are completed.
13. Construction Contracts. Developer agrees to include in each
Construction contract that it enters into for the completion of the Community
Facilities the following:
a. A statement that the City is not holding any security to guarantee any
payment for work performed on the Community Facilities;
b. A statement that the Property is private property and that same may
be subject to mechanic's and materialman's liens;
c. A requirement that each contractor contracting with the Developer
release the City from any claim that is related to the Property; and
d. A requirement that each contractor contracting with the Developer
include in each subcontract the statements contained in a., b., and c.
above.
14. Miscellaneous.
A. Non-Assi�nment of A�reement. This Agreement may not be assigned
by any of the Parties without the prior written consent of all the other
Parties.
B. Notice. Any notice required or permitted to be delivered under this
Agreement shall be deemed received on actual receipt by the
appropriate party at the following addresses:
(i) Notice to the City shall be addressed and delivered as follows:
C�
and/or
City of Fort Worth
Planning and Development Department
1000 Throckmorton Street
Fort Worth, Texas 76102
Attention: CFA Division
Julie Westerman, Development Manager
Email: Julie.Westerman@fortworthtexas.gov
Confirmation Number: 817-392-2677
Attention: CFA Division
Email: cfa@fortworthtexas.gov
Confirmation Number: 817-392-2025
With a copy thereof addressed and delivered as follows:
Douglas W. Black
Office of the City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth, Texas 76102
Confiz•mation Number: 817-392-7615
(ii) Notice to the Developer shall be addressed and delivered as
follows:
Bloomfield Homes, L.P.
1050 E. Hwy. 114, Suite 210
Southlake, TX 76092
Email: dondykstra@bloomfieldhomes.net
(iii) Notice to the Lender shall be addressed and delivered as follows:
Email:
A party may change its address for notice upon prior written notice to the
other parties pursuant to the terms hereof.
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C. Teaas La�v to Apply. This Agreement shall be construed under and in
accordance with the laws of the State of Texas.
D. Parties Bound. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective legal representatives,
successors and assigns.
E. Le�al Construction. In case any one or more of the provisions
contained in this Agreement shall for any reason is held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Agreement,
and this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained in this Agreement.
F. Prior A�reements Superseded. This Agreement constitutes the sole
and only agreement of the Parties with respect to the subject matter
hereof and supersedes any prior understandings or written or oral
agreements among the Parties concerning the subject matter hereof;
provided, however, that this Agreement shall not supersede, amend or
modify any of the Loan Documents or any portion thereof.
G. Amendment. This Agreement may only be amended by a written
instrument executed by all of the Parties to his Agreement.
H. Headin�s. The headings that are used in this Agreement are used for
reference and convenience purposes only and do not constitute
substantive matters to be considered in construing the terms and
provisions of this Agreement.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
:
Executed IN QUADRUPLICATE by the Parties hereto:
CITY OF FORT WORTH:
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Assistant City Manager
Date: � � g 1 �
APPROVED AS TO FORM:
ATTEST:
�.iry �ecretary
M&C: �J��
Date:
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Donald J. Dykstra, President
Bloomfield Properties, Inc.
DEVELOPER: General Partner
,
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Nan�e: Donald J. Dyl�stra
Title: President
Date: I C 1 �
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LENDER:
Name: N/A
Title:
�FFICIA�, REC�Rp
CI`fiY �E���iARY
�� ��rtTH, TX
Bloomfield Homes, L.P., the Guarantor of the Developinent Loan, is
executing this Completion Agreement for the sole purpose of acknowledging
that advances that are made by the Lender pursuant to this Completion
Agreement shall be deemed to be advances that are made under the Loan that
shall be subject to and covered by the Loan Documents and the Guaranty
Agreement that was executed by Donald J. Dykstra.
�ARANTO �
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Name: Donald J. Dykstra
Donald J. Dykstra, Pres(dent
Tltle: PTeSlClellt BloomfieldProperties,InC.
General Partner
O�FIClA� �ECORD
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LIST OF EXHIBITS TO THE COMPLETION AGREEMENT
EXHIBIT A - LEGAL DESCRIPTION
EXHIBIT B - APPROVED BUDGET
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EXHIBIT "A"
PROPERTY DESCRIPTION
STATE OF TEXAS:
COUNTY OF TARRANT:
BEING a tract of land situated in the Moses Walters Survey, Abstract No. 1598, City of Fort Worth,
Tarrant County, Texas, being a portion of Tract 1 as described in deed to Bloomfield Homes, L.P.,
recorded in D213322818, Deed Records, Tarrant County, Texas, and being more particularly described
as follows:
BEGINNING at a 5/8" rebar found at the southeast corner of the southerly terminus of Mountain
Meadow Road (60' R.O.W.) and the southwest corner of Lot 27, Block 116 per the final piat of
R.osemary Ridge Addition, an addition to the City of Fort Worth, Tarrant County, Texas as recorded in
Cabinet A, Slide 10512, Plat Records, Tarrant County Texas, said point lying in a northwesterly line of
said Bloomfield Homes Tract 1;
THENCE N 44°51'34" E, departing the southeast corner of said Mountain Meadow Road, along a
southeasterly line of said Rosemary Ridge Addition and said northwesterly line of Bloomfield Homes
Tract 1, a distance of 111.19 feet to a point for corner at a leaning 5/8" rebar found at the southeast
corner of Lot 28 of said Block 116 and a reentrant corner of said Bloomfield Homes Tract l;
THENCE N 45°08'26" W, along a reentrant line of said Rosemary Ridge Addition and said Bloomfield
Homes Tract 1, at a distance of 109.93 feet passing the most easterly corner of the easterly terminus of
Sweet Clover Lane (50' R.O.W. per Cabinet A, Slide 10512, Plat Records, Tarrant County, Texas), at a
distance of 159.93 feet passing a 5/8" rebar found at the most northerly corner the easterly terminus of
said Sweet Clover Lane, continuing a total distance of 269.72 feet to a reentrant corner of said Rosemary
Ridge Addition and said Bloomfield Homes Tract 1;
THENCE along a southerly line of said Rosemary Ridge Addition and the north line of said Bloomiield
Homes Tract l, as follows:
N 47°28'35" E, a distance of 40.38 feet;
N 54°43'30" E, a distance of 87.43 feet to a 5/8" rebar capped Dunaway found;
N 64°59'S8" E, a distance of 102.39 feet;
N 74°46'07" E, a distance of 78.11 feet;
N 82°30'44" E, a distance of 92.88 feet;
S 85°29'S0" E, a distance of 460.66 feet;
N 81°39'48" E, a distance of 74.26 feet;
N 61°34'40" E, a distance of 153.47 feet;
THENCE N 69°48'OS" E, a distance of 37.86 feet (deed 37.80 feet) to the west line of a 42' wide
right-of-way dedication for McCart Avenue per Cabinet B, Slide 3403, Plat Records, Tarrant County,
Texas, being the beginning of a non-tangent curve to the left, having a radius point that bears N
69°49'06" E, 942.00 feet;
THENCE along the west line of said McCart Avenue and the east line of said Bloomfield Homes Tract
1, as follows:
Southeasterly, along said curve, having a central angle of 23°50'26", an arc distance of 391.96
feet, and being a chord that S 32°06'07" E, 389.14 feet to the beginning of a reverse curve to the
right, having a radius of 908.00 feet;
Southeasterly, along said curve, having a centrai angle of 25°17'06", an arc distance of 400.71
feet, and a chord that bears S 31 °22'47" E, 397.46 feet to the end of said curve;
THENCE departing the west right-of-way line of said McCart Avenue, traversing across said
Bloomfield Homes Tract l, as follows:
S 71 ° 15'46" W, radial to said curve, a distance of 3 8.00 feet;
N 67°20'S8" W, a distance of 13.31 feet to the beginning of a non-tangent curve to the left,
having a radius point that bears S 26°14'31" E, 470.00 feet;
Southwesterly, along said curve, having a central angle of 04°25'S7", an arc distance of 36.36
feet, and being a chord that bears S 61°32'31" W, 36.35 feet to the beginning of a reverse curve
to the right, having a radius of 830.00 feet;
Southwesterly, along said curve, having a central angle of 30°32'02", an arc distance of 442.32
feet, and a chord that bears S 74°35'33" W, 437.11 feet to the end of said curve;
S 89°51'34" W, tangent to said curve, a distance of 514.25 feet to the beginning of a tangent
curve to the right, having a radius of 255.00 feet;
Northwesterly, along said curve, having a central angle of 4S°00'00", an arc distance of 200.28
feet, and a chord that bears N 67°38'26" W, 195.17 feet to the end of said curve;
N 45°08'26" W, tangent to said curve, a distance of 298.46 feet to the southwest corner of the
southerly terminus of Mountain Meadow Road (60' R.O.W.) and the southeast corner of Lot 25,
Block 121 of said Rosemary Ridge Addition per Cabinet A, Slide 10512, Plat Records, Tarrant
County, Texas;
THENCE N 44°51'34" E, along the southerly terminus of said Mountain Meadow Road, a distance of
60.00 feet to the POINT OF BEGINNING and containing 19.462 ACRES of land.
SAVE & EXCEPT FROM THE 19.462 ACRE TRACT DESCRIBED ABOVE, THAT CERTAIN
2.510 ACRE TRACT OF LAND DESCRIBED AS FOLLOWS:
BEING a tract of land situated in the Moses Walters Survey, Abstract No. 1598, City of Fort Worth,
Tarrant County, Texas, being a portion of Tract 1 as described in deed to Bloomfield Homes, L.P.
recorded in D213322818, Deed Records, Tarrant County, Texas, and being more particularly described
as follows:
COMMENCING at a 5/8" rebar found at the southeast corner of the southerly terminus of Mountain
Meadow Road (60' R.O.W.) and the southwest corner of Lot 27, Block 116 per the final plat of
Rosemary Ridge Addition, an addition to the City of Fort Worth, Tarrant Couniy, Texas as recorded in
Cabinet A, Slide 10512, Plat Records, Tarrant County Texas, said point lying in a northwesterly line of
said Bloomfield Homes Tract 1;
THENCE S 45°08'26" E, departing the southeast corner of said Mountain Meadow Road, traversing
across said Bloomfield Homes Tract 1, a distance of 272.50 feet to the POINT OF BE(sINNING c�f the
herein described tract of land;
THENCE traversing across said Bloomfield Homes Tract 1, as follows:
N 33°56'37" E, a distance of 71.29 feet;
N 54°03'22" E, a distance of 37.60 feet;
S 75°42'28" E, a distance of 126.43 feet;
S 87°50'28" E, a distance of 310.25 feet;
S 85°29'S0" E, a distance of 55.18 feet;
N 87°30'41" E, a distance of 97.01 feet;
N 83°52'02" E, a distance of 102.35 feet;
N 78°37'S9" E, a distance of 56.21 feet;
N 72°28'28" E, a distance of 96.95 feet to the beginning of a non-tangent curve to the right,
having a radius point that bears S 57°40'08" W, 700.00 feet;
Southeasterly, along said curve, having a central angle of 09°00'02", an arc distance of 109.96
feet, and a chord that bears S 27°49'S1" E, 109.85 feet to the end of said curve;
S 22°38'43" W, non-tangent to said curve, a distance of 14.00 feet to the beginning of a
non-tangent curve the right, having a radius point that bears N 21°24'S8" W, 770.00 feet
Southwesterly, along said curve, having a central angle of 21 ° 16'32", an arc distance of 285.92
feet, and a chord that bears S 79°13'18" W, 284.28 feet to the end of said curve;
S 89°51'34" W, tangent to said curve, a distance of 514.25 feet to the beginning of a tangent
curve to right, having a radius of 195.00 feet;
Northwesterly, along said curve, having a central angle of 45°00'00", an arc distance of 153.15
feet, and a chord that bears N 67°38'26" W, 149.25 feet to the end of said curve;
N 45°08'26" W, tangent to said curve, a distance of 25.96 feet to the POINT OF BEGINNING
and containing 2.510 ACRES of land.
LEAVING A NET ACREAGE OF 16.952 ACRES OF LAND.
Section I
Water
Sewer
Subtotal
Section II
Interior Streets
Storm Drains
Subtotal
Section III
Street Lights
Sub-total
TOTAL
EXHIBIT B
APPROVED BUDGET
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$143865.00
$201115.70
$476107.00
$120900.00
$137950.00
$344980.70
$597007.00
$734957.00
$1079937.70